As filed with the Securities and Exchange Commission on March 26, 1999
Registration No. 333-__________
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Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NATIONAL COMPUTER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0850527
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11000 Prairie Lakes Drive 55344
Eden Prairie, Minnesota (Zip Code)
(Address of Principal Executive Offices)
NATIONAL COMPUTER SYSTEMS, INC. SUPPLEMENTAL DEFERRED COMPENSATION PLAN
(Full title of the Plan)
J.W. Fenton, Jr.
Secretary/Treasurer
NATIONAL COMPUTER SYSTEMS, INC.
11000 Prairie Lakes Drive
Eden Prairie, Minnesota 55344
(Name and address of agent for service)
(612) 829-3040
(Telephone number, including area code, of agent for service)
Copy to:
Jay L. Swanson
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
CALCULATION OF REGISTRATION FEE
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Title of
securities Proposed maximum Proposed maximum Amount of
to be Amount to be offering price aggregate offering registration
registered registered (1) per share (2) price (2) fee
Deferred
Compensation
Obligations $5,000,000 100% $5,000,000 $1,390
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(1) The Deferred Compensation Obligations are unsecured obligations of National
Computer Systems, Inc. to pay deferred compensation in the future in
accordance with the National Computer Systems, Inc. Supplemental Deferred
Compensation Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457 under the Securities Act of
1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by National Computer
Systems, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement
(the "Registration Statement"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended April 30, 1998, July 31, 1998 and October 31, 1998.
(c) The description of the Company's Common Stock contained in any
registration statement filed by the Company under the Exchange
Act, including any amendment or report filed by the Company
under the Exchange Act for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the respective dates of filing of such documents.
Item 4. Description of Securities.
The securities offered hereby by the Company are Deferred Compensation
Obligations (as defined below). Pursuant to the terms of the National Computer
Systems, Inc. Supplemental Deferred Compensation Plan (the "Plan"), eligible
employees (each such employee, a "Participant") of the Company (or one of its
subsidiaries) may elect to defer up to 70% of their annual base compensation and
80% of their annual bonus. The minimum annual deferral amount is $2,500. The
amount of base compensation and bonus deferred pursuant to such elections are
referred to herein as "Deferred Compensation Obligations."
In connection with the Plan, the Company has created a non-qualified
grantor trust (the "Trust") commonly known as a "Rabbi Trust." The assets of the
Trust will be used to pay benefits and defray Plan expenses. The assets of the
Trust are subject to the claims of general creditors of the Company. As a
result, the Deferred Compensation Obligations will be unsecured obligations of
the Company to pay deferred compensation in the future in accordance with the
terms of the Plan, and will rank equally with other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding.
The amount of base compensation and bonus payments to be deferred by a
Participant (a "Deferral") will be credited with earnings and investment gains
and losses by assuming that the Deferral was invested in one or more investment
alternatives selected by such Participant in accordance with the terms of the
Plan. Investment alternatives include different mutual funds that invest in
different types of securities. However, Deferrals will not be invested in the
investment alternatives available under the Plan. Rather, the Trust will invest
its assets in variable universal life insurance contracts on the lives of the
Participants. The Rabbi Trust is the owner of the policies, and the Rabbi Trust
is the sole beneficiary of such policies. Deferrals will be denominated and paid
in United States dollars.
The Company reserves the right to amend or terminate the Plan at any
time, except that no such amendment or termination shall adversely affect the
right of a Participant to the balance of such Participant's Deferrals as of the
date of such amendment or termination.
Generally, a Participant's right or the right of any other person to
receive payment of Deferred Compensation Obligations cannot be assigned,
alienated, sold, garnished, transferred, pledged or encumbered.
The Deferred Compensation Obligations are not convertible into another
security of the Company. The Deferred Compensation Obligations will not have the
benefit of a negative pledge or any other affirmative or negative covenant on
the part of the Company.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521 of the Minnesota Statutes requires, among other
things, the indemnification of persons made or threatened to be made a party to
a proceeding by reason of acts or omissions performed in their official capacity
as an officer, director, employee or agent of the corporation against judgments,
penalties and fines (including attorneys' fees) if such person is not otherwise
indemnified, acted in good faith, received no improper benefit, believed that
such conduct was in the best interests of the corporation, and, in the case of
criminal proceedings, had no reason to believe the conduct was unlawful. In
addition, Section 302A.521, subd. 3, requires payment by the corporation, upon
written request, of reasonable expenses in advance of final disposition in
certain instances. A decision as to required indemnification is made by a
disinterested majority of the Board of Directors present at a meeting at which a
disinterested quorum is present or by a designated committee of the Board, by
special legal counsel, by the shareholders or by a court.
Article IX of the Company's Restated Articles of Incorporation, as
amended, provides that a director of the Company shall not be personally liable
to the Company or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its shareholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) for authorizing a dividend, stock repurchase or redemption or
other distribution in violation of Minnesota law or for violation of certain
provisions of Minnesota securities laws; (iv) for any transaction from which the
director derived an improper personal benefit; or (v) for any act or omission
occurring prior to the date when Article IX became effective.
The Bylaws of the Company provide that the Company shall indemnify such
persons, for such liabilities, in such manner, under such circumstances and to
such extent as permitted by Section 302A.521, as now enacted or hereafter
amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4 National Computer Systems, Inc. Supplemental Deferred Compensation
Plan.
5 Opinion of counsel as to the validity of the securities covered by
the Registration Statement.
23.1 Consent of Ernst & Young, LLP, independent auditors.
23.2 Consent of counsel (included in opinion filed as Exhibit 5).
24 Power of attorney.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities Act"),
unless the information required to be included in such
post-effective amendment is contained in a periodic report
filed by the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act and incorporated herein by reference;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information required to be included in
such post-effective amendment is contained in a periodic
report filed by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act and incorporated herein by
reference. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or other
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Eden Prairie, State of Minnesota, on March 25, 1999.
NATIONAL COMPUTER SYSTEMS, INC.
By: /s/ J. W. Fenton, Jr.
J.W. Fenton, Jr.
Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title
Russell A. Gullotti* Chairman of the Board, President and Chief Executive
Officer and Director
(principal executive officer)
Jeffrey W. Taylor* Vice President and Chief Financial Officer
(principal financial and accounting officer)
David C. Cox* Director
Delores M. Etter* Director
Moses S. Joseph* Director
Jean B. Keffeler* Director
Stephen G. Shank* Director
John E. Steuri* Director
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* Executed on behalf of the indicated officers and directors of the
registrant by J.W. Fenton, Jr., duly appointed attorney-in-fact.
By /s/ J. W. Fenton, Jr.
J.W. Fenton, Jr.
Attorney-in-Fact